(a) If after hearing, upon notice the Commission determines that any standard offer service supplier, electric supplier or electric distribution company has, as a matter of past or present fact arising after enactment of this section:

(1) Failed to comply with or violated any term or condition in any certificate, permit, or other instrument or authorization granted by the Commission;

(2) Failed to comply with or violated any of the provisions of this title or any rule, or regulation, promulgated by the Commission;

(3) Failed to comply with or violated any order entered by the Commission; or

(4) Materially failed to provide facilities, products or services which are safe, efficient, adequate or reliable.

Then such standard offer service supplier, electric supplier or electric distribution company shall be liable to the State for a civil penalty; provided however, that no penalty shall be assessed under paragraph (a)(4) of this section unless the material failure is of the type that the standard offer service supplier, the electric supplier or electric distribution company knew or should have known as a result of standards, policies or procedures previously articulated by the Commission or through generally accepted industry standards or practices that its action(s) or inaction(s) would have been reasonably likely to cause the material failure. Such penalty shall not exceed $5,000 for each violation, with the overall penalty not to exceed an amount reasonable and appropriate for the violation. Each day of noncompliance shall be treated as a separate violation.

(b) The Commission shall determine the amount of any penalty to be assessed under subsection (a) of this section. In making such determination, the Commission shall consider:

(1) The nature, circumstances, extent and gravity of the violation;

(2) The standard offer service supplier, electric supplier or electric distribution company’s level of culpability, history of prior violations, and ability to pay;

(3) The good faith efforts of the standard offer service supplier, electric supplier or electric distribution company in attempting to resolve the violation after notification of noncompliance;

(4) In the case of an electric cooperative, the Commission shall not assess any monetary penalty that would adversely impact the financial stability of such an entity and any monetary penalty that is assessed against an electric cooperative shall not exceed $1,000 for each violation, which each day of noncompliance shall be treated as a separate violation.

(c) Any penalty imposed under this section may be recovered by an action instituted in the name of the State in the Superior Court. In such an action for recovery, the validity and amount of such penalty shall not be subject to review. In any such action, the State may recover the penalty, interest, costs and reasonable attorneys’ fees.

(d) If the Commission determines that a standard offer service supplier, electric supplier or electric distribution company will, as a result of present conditions or future threatened or contemplated action:

(1) Fail to comply with or violate any term or condition in any certificate, permit, or other instrument or authorization granted by the Commission;

(2) Fail to comply with or violate any of the provisions in this Title or any rule or regulation, promulgated by the Commission;

(3) Fail to comply with or violate any order entered by the Commission; or

(4) Materially fail to provide facilities, products, or services, which are safe, efficient, adequate or reliable;

Then the Commission may after hearing, upon notice, enter such orders to ensure compliance by the standard offer service supplier, electric supplier or electric distribution company. In exercising this authority, the Commission may enter immediate or prompt preliminary orders, to ensure compliance pending a final determination and order, in those instances where the public interest requires immediate or prompt action or relief. In its process for considering whether to issue a preliminary order, the Commission shall conduct an appropriate proceeding, upon appropriate notice, given the relief sought. If such a preliminary order is issued, the Commission shall thereafter, promptly schedule and begin the process to consider a final determination and order, which proceeding for final determination and order shall be conducted with notice and hearings consistent with the requirement of § 101 of Title 29.

(e) If after hearing, upon notice, the Commission determines that any standard offer service supplier, electric supplier or electric distribution company has, as a matter of past or present fact occurring after June 30, 2003:

(1) Failed to comply with or violated any term or condition in any certificate, permit or other instrument or authorization granted by the Commission;

(2) Failed to comply with or violated any of the provisions of this title or any rule or regulation, promulgated by the Commission;

(3) Failed to comply with or violated any order entered by the Commission; or

(4) Materially failed to provide facilities, products or services, which are safe, efficient, adequate or reliable.

Then the Commission may enter an order modifying, suspending or revoking any certificate, permit or authorization previously granted by the Commission to such standard offer service supplier, electric supplier or electric distribution company. Such remedy shall only be applied when the gravity of the violation warrants such relief. Revocation of a certificate, permit or authorization shall only be permitted, when there is a finding of a gross violation or violations or a pervasive pattern of conduct in violation of this section. Additionally, such remedy shall only be applied with respect to paragraph (e)(4) of this section if the material failure is of the type that the standard offer service supplier, the electric supplier, or electric distribution company knew or should have known as a result of standards, policies or procedures previously articulated by the Commission or through generally accepted industry standards or practices that its action(s) or inaction(s) would have been reasonably likely to cause the material failure.

(f) In making the determination under subsection (e) of this section to modify, suspend or revoke any prior certificate, permit or authorization, the Commission shall consider:

(1) The factors listed in subsection (b) of this section;

(2) The ability of penalties and other sanctions to ensure compliance without the need to suspend or revoke; and

(3) The impact on the public interest by such modification, suspension or revocation.

(g) The penalty and other sanctions authorized by this section shall be in addition to any other penalties or sanctions authorized by law. The Commission may exercise the power granted in subsection (e) of this section in addition to the imposition of any penalty or other sanction imposed under this section or any other provision of the law. A final order with respect to any findings made or penalties or other sanctions imposed under this section shall be subject to the appeal procedures of § 510 of this title.

(h) The Commission may recover the costs of any proceeding instituted under this section in accordance with the provisions of §§ 114 and 1012(c)(2) of this title.

(i) This section shall apply to electric distribution companies, electric suppliers, DP&L and DEC, and any successors or assigns, except that this section shall not apply to electric distribution companies that are exempt from the jurisdiction of the Commission pursuant to § 202 of this title.

74 Del. Laws, c. 73, § ?6;